Shifting Legal Focus in the Supreme Court; Legal Action Involving News Media in 1992 Dealt More with Commercial Speech, Subpoenas for Phone Records Than on Libel

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Legal action involving news media in 1992 dealt more with commercial speech, subpoenas for phone records than on libel

LEGAL ACTION CONCERNING the news media last year -- and likely next -- focused less on traditional issues such as libel and privacy, and wandered into such territories as commercial speech and issuing subpoenas for telephone records.

The U.S. Supreme Court, for example, has granted certiorari in a number of commercial speech cases and a taxation case.

A certiorari petition was filed by a Florida journalist facing jail over disclosure of a source, but the Court has yet to say whether it will hear arguments in the case (E&P, Sept. 12, 1992).

Last June, the Court ruled in Morales, Attorney General of Texas v. Trans World Airlines Inc. that provisions of the 1978 Airline Deregulation Act do not allow states' consumer protection statutes to regulate deceptive airline rate advertising (E&P, June 13, 1992, P. 47).

Writing for the 5-3 majority, Justice Antonin Scalia noted that "Although the state insists that it is not compelling or restricting advertising but is, instead, merely preventing the market distortion caused by 'false' advertising, in fact the dynamics of the air transportation industry cause the guidelines to curtail the airlines' ability to communicate fares to their customers .... "

In early November 1992, the Court heard arguments in The City of Cincinnati v. Discovery Network Inc., et al., a case which examines the constitutional protection for commercial speech.

Discovery Network and Harmon Publishing are challenging a Cincinnati ban on newsracks that distribute their publications which advertise learning and social programs and real estate.

The challenge to the ordinance noted that, while it bans commercial distribution, non-commercial newsracks are allowed.

Yet the city's reason for the ban -- regulation of aesthetics and safety -- also apply to non-commercial newsboxes.

Discovery was upheld through to the appellate court, which found that only false or misleading commercial speech, or that which has direct adverse effects, can be afforded less constitutional protection than other speech.

A number of media and advertising organizations and companies filed friend of the court briefs in support of Discovery.

Also in November, the Court heard arguments in the taxation case of Newark Morning Ledger Co., as successor to the Herald Co. v. United States of America.

The Newark (N.J.) Morning Ledger Co. is asking the Court to overturn a lower court ruling that found the company could not deduct from taxes some $67 million in paid subscriptions from an earlier acquisition (E&P, Jan. 18, 1992, P. 43).

The case goes back to 1977, when the Herald acquired Booth newspapers and began deducting the value of the Booth subscribers, which it calculated at $67 million. …